Senators Patrick Leahy (D., Vt.) and Mike Lee (R., Utah) said Wednesday that “damning” evidence of widespread FISA abuse uncovered in an ongoing audit of the FBI’s application process proves that “our work is not done” as the Senate prepares to consider an extension of expiring FISA powers in the coming months.
In light of a report released Tuesday showing systemic abuses within the foreign surveillance process, Leahy and Lee announced that they will propose an amendment to “ensure” that government agencies hand over all evidence — including potentially exculpatory evidence — in future FISA applications. The amendment will be added to the “USA FREEDOM Extension and Amici Curiae Reform Act,” which Lee and Leahy introduced last month to enact “significant” reforms of the FISA legal adviser process, including the appointment of an a special expert in privacy and civil liberties to help boost protections for U.S. citizens.
“The FBI appears to have a widespread problem in failing to disclose all of the exculpatory evidence in its possession to the FISA court. The disclosure of all exculpatory information to a court is one of the most basic due process rights guaranteed to all Americans, regardless of whether the court operates in the open or behind closed doors,” the senators said in a joint statement.
The new report from Justice Department Inspector General Michael Horowitz found that an initial review of the Bureau’s transparency measures in 29 FISA applications involving U.S. citizens all included “apparent errors or inadequately supported facts.”
Horowitz’s office was examining whether abuses of the Woods Procedure, which requires that the Justice Department verify the accuracy and provide evidentiary support for all facts stated in every FISA application, were part of a larger problem for the Bureau.
The OIG found in a report released in December that the FBI included “at least 17 significant errors or omissions in the Carter Page FISA applications and many errors in the Woods Procedures” during its Crossfire Hurricane investigation of the 2016 Trump campaign.
The new report Tuesday revealed that of the 29 applications that the OIG pulled from “8 FBI field offices of varying sizes,” the FBI lacked find Woods Files for four of the applications, while the other 25 all had an “average of about 20 issues” per application.
The debate over FISA nearly came to a head in March, after Lee’s office said in December that “major reforms” could be passed before three of the program’s powers were set to expire on March 15. But the Senate elected to issue a bare-bones extension of the surveillance authorities for 77 days, with a commitment that senators would be permitted to offer amendments when the House bill is taken up.
Republicans appear to be largely divided on the issue, with President Trump and allies indignant over the “witch hunt” of his 2016 campaign joining with civil-liberties advocates against security hawks. Lee and Rand Paul (R., Ky.) have been some of the Senate GOP’s most outspoken critics, while Majority Leader Mitch McConnell (R., Ky.) has expressed sympathy with Attorney General Bill Barr, who wants FISA reauthorized.
Senate Judiciary Committee Chairman Lindsey Graham (R., S.C.) said Tuesday that he planned to call Horowitz back in front of his committee to further detail the audit into the FBI’s protocols.